Rowe
D.J.T.C.C.:—The
appellant
appeals
from
an
assessment
of
income
tax
for
his
1982,
1983,
and
1984
taxation
years
whereby
the
respondent
assessed
him
for
tax
on
the
basis
that
he
was,
in
each
of
those
years,
a
resident
of
Canada.
In
a
separate
appeal
—
89-1254(IT)O
—
by
agreement
heard
together
with
this
appeal,
the
appellant
appeals
from
an
assessment
for
his
1985
and
1986
taxation
years,
again
issued
by
the
respondent
on
the
basis
the
appellant
was
a
resident
of
Canada.
The
position
of
the
appellant
is
that
for
all
of
the
years
covered
by
the
two
appeals,
1982
to
1986,
inclusive,
he
was
not
a
resident
of
Canada.
The
appellant
testified
he
was
born
in
1951
at
Nelson,
British
Columbia
and
currently
resides
at
Trout
Lake,
British
Columbia.
After
completing
highschool
at
Nelson,
he
took
vocational
training
in
Nelson,
Kelowna
and
Kamloops
and
then
went
to
Los
Angeles
to
study
for
certification
in
deep-sea
helium-oxygen
diving,
including
hyperbaric
welding
done
at
depths
to
600
feet.
By
completing
that
course
of
study,
the
appellant
stated
he
became
part
of
a
mere
handful
of
individuals
who
were
specialists
in
that
field
and
was
then
qualified
to
work
in
the
North
Sea
offshore
oil
exploration
project.
In
1981,
he
was
employed
as
a
diver
in
the
Arctic
by
CANDIVE
and
upon
completing
that
assignment
looked
for
work
in
the
field
of
underwater
pipeline
construction
but
was
unable
to
locate
any
such
work
within
Canada.
In
September,
1981,
he
packed
his
equipment
and
personal
belongings
into
boxes
and
went
to
Aberdeen,
Scotland.
He
was
unmarried
and
his
assets
at
the
time
were
made
up
of
a
piece
of
recreational
property
at
Trout
Lake,
a
motorcycle,
an
old
truck,
together
having
a
value
of
approximately
$5,000.
In
Scotland
he
began
working
for
Solus
Ocean
Systems
which
later
merged
with
Wharton-Williams,
a
large
firm
engaged
in
underwater
pipeline
construction.
He
obtained
lodging
at
a
bed
and
breakfast
in
Aberdeen
and
made
arrangements
to
leave
his
equipment
there
which
he
used
in
the
course
of
his
offshore
work.
He
stayed
in
those
rooms
for
nearly
five
years
before
moving
to
another
place
in
Aberdeen.
In
the
bed
and
breakfast
premises,
he
had
a
small
suite
on
the
second
floor,
exclusively
for
his
use,
and
he
rented
it
on
an
annual
basis,
keeping
there
all
of
his
personal
belongings
and
diving
equipment.
When
onshore,
he
had
to
attend
at
his
employer's
office
in
Aberdeen.
His
work
in
offshore
oilfield
construction
would
require
him
to
be
gone
for
a
period
of
six
weeks
to
two
and
one-half
months,
after
which
he
would
return
to
his
suite
in
Aberdeen
for
two
weeks
and
the
work
cycle
would
be
repeated.
While
working
offshore,
the
appellant
stated
he
lived
on
barges
or
diving
ships
and,
depending
on
the
depths
at
which
he
was
working,
in
decompression
chambers.
The
working
season
in
the
North
Sea
was
from
the
first
part
of
May
to
the
end
of
October.
Other
slack
periods
would
arise
from
time
to
time
owing
to
lack
of
construction
projects
available
to
his
employer.
His
employer
bid
on
contracts
in
Holland,
Norway
and
Spain.
He
stated
he
spent
nearly
one
year
working
in
Spain
but
would
return
to
Aberdeen
from
time
to
time.
In
Spain,
he
rented
an
apartment
for
a
one-year
term.
During
this
period
he
maintained
his
suite
in
Aberdeen.
He
also
worked
on
projects
in
the
Gulf
of
Mexico,
India,
at
various
spots
in
the
Middle
East,
and
along
the
Ivory
Coast.
Between
1982
and
1986,
he
returned
to
Canada
for
vacations
or
to
visit
relatives.
One
year
he
worked
for
three
weeks
in
the
Canadian
Arctic
but
cannot
recall
the
specific
period
involved.
During
visits
to
Canada,
he
would
stay
with
friends
or
relatives.
When
not
working
out
of
his
location
in
Aberdeen,
he
would
also
travel
to
Hawaii,
San
Francisco,
Los
Angeles
and
Mexico.
He
estimated
that
during
the
years
under
appeal
he
was
in
Canada,
each
year,
between
75-100
days,
but
not
consecutively.
While
in
Canada
or
on
holidays
elsewhere,
he
would
keep
in
touch
by
telephone
with
his
employer
in
Scotland
in
the
event
he
was
to
be
dispatched
on
sudden
notice
to
travel
to
a
particular
work
location.
Between
1981
and
1991,
he
held
a
Canadian
passport
and
from
1982
to
1986,
had
bank
accounts
at
Nelson,
British
Columbia,
Aberdeen,
Scotland,
in
Spain,
in
the
Isle
of
Man
and
Jersey.
His
pay
cheques
were
sent
by
his
employer
to
the
appellant’s
account
at
a
bank
in
Aberdeen.
He
maintained
a
British
Columbia
driver's
license,
with
Trout
Lake
as
his
residential
address.
In
his
experience,
an
international
driver's
license
was
not
required
as
the
British
Columbia
license
was
satisfactory
to
permit
him
to
rent
vehicles
at
locations
all
over
the
world.
He
maintained
medical
insurance
coverage
with
the
British
Columbia
medical
services
plan
and
also
had
a
National
Health
Service
medical
card
in
the
United
Kingdom.
In
1986,
while
diving
off
the
southwest
coast
of
England,
he
sustained
injuries,
requiring
a
stay
of
one
month
in
hospital,
subsequent
to
which
he
travelled
to
Nelson,
British
Columbia
for
further
recuperation
and
treatment
by
a
local
physician.
In
obtaining
medical
treatment
he
used
his
British
Columbia
medical
card
instead
of
his
United
Kingdom
medical
coverage
in
order
to
avoid
the
"mountain
of
paperwork"
involved
in
obtaining
reimbursement.
The
appellant
stated
that
for
the
years
1982-86,
inclusive,
he
did
not
file
tax
returns
in
the
United
Kingdom
but
did
so
thereafter.
At
the
outset
of
his
employment
he
thought
his
employer
was
going
to
take
care
of
tax
matters
but
discovered
that
was
not
so.
The
taxation
authorities
in
the
United
Kingdom
began
paying
closer
attention
to
foreign
corporations
and
introduced
measures
to
render
these
employers
liable
for
unpaid
taxes
of
employees.
In
order
to
settle
accounts
with
the
formidable
and
legendary
Inland
Revenue
Commissioners,
he
paid
tax
on
his
earnings
at
the
rate
of
30
per
cent
for
the
years
1981
to
1989,
inclusive.
He
retained
the
services
of
an
accountant
on
the
Isle
of
Man
and
the
arrangement
with
the
United
Kingdom
tax
authorities
was
on
the
basis
that
he
was
a
nonresident
in
the
United
Kingdom,
which
was
not
material
to
him
as
the
rate
was
nearly
the
same
as
for
residents.
Since
1990,
the
appellant
has
been
living
in
a
common-law
relationship
with
his
“highschool
sweetheart"
but
during
his
working
career
offshore
he
had
other
romantic
liaisons
of
varying
duration.
In
1993,
at
age
42,
he
retired
from
offshore
underwater
construction
as
time
had
taken
its
toll
on
his
system.
The
appellant
stated
that
in
1981,
at
age
30,
he
left
Canada
with
the
expectation
he
would
work
as
a
diver
for
eight
years.
There
was
no
opportunity
to
work
at
his
hyperbaric
welding
specialty
within
Canada
so
he
was
well
aware
that
he
would
be
employed
offshore
at
various
locations
in
Europe
and
elsewhere.
In
cross-examination,
he
stated
that
he
has
a
residence
in
Nelson,
British
Columbia
where
his
parents
have
also
lived
since
1990.
He
has
a
sister
in
Kelowna
and
brothers
in
Creston
and
Revelstoke.
He
is
the
father
of
a
two
year
old
girl,
born
of
the
common-law
union
which
he
currently
maintains.
He
stated
the
cabin
on
the
lot
at
Trout
Lake
is
worth
$11,000
and
is
about
one
kilometre
from
the
lot
he
previously
owned.
He
identified
a
document,
filed
as
Exhibit
R-1,
as
being
a
transfer
of
two
lots
into
his
name
on
September
12,
1980.
He
also
identified
documents,
filed
as
Exhibit
R-3,
as
pertaining
to
an
application
by
him,
in
July,
1984,
to
the
Ministry
of
Lands,
Parks
and
Housing
of
British
Columbia,
for
a
Crown
grant
allowing
him
to
obtain
title
to
another
lot
at
Trout
Lake.
He
hired
a
contractor
to
construct
a
road
into
the
property
and
intended
to
use
the
property
for
placer
mining
during
his
trips
to
Canada.
In
1982
or
1983,
he
held
a
prospector's
license,
issued
by
the
British
Columbia
government.
The
appellant
agreed
that
the
statement
in
his
notice
of
appeal
that
“at
times
material
he
lived
in
Spain”
is
incorrect.
The
appellant
agreed
that
he
purchased
property
at
Trout
Lake
from
his
father
in
1983,
which
he
held
until
selling
the
land
in
1992.
On
September
30,
1985
pursuant
to
a
transfer
of
land
(Exhibit
R-7),
for
which
the
consideration
was
the
sum
of
$68,000
a
Certificate
of
Title
(Exhibit
R-8)
was
issued
in
the
names
of
Richard
George
Wassick
and
Sharon
Anne
Ferguson
—
now
his
common-law
wife
and
the
mother
of
his
child
—
as
joint
tenants
to
certain
property
in
Nelson.
This
is
the
same
property
which
was
the
subject
of
a
transfer
of
land
(Exhibit
R-9)
,
dated
December
16,
1986
from
the
appellant
and
Sharon
Ferguson
as
joint
tenants
to
Sharon
Ferguson,
in
consideration
of
the
sum
of
one
dollar.
Subsequent
to
the
transfer
into
Ms.
Ferguson's
name,
he
still
remained
as
a
guarantor
of
the
mortgage
on
the
property.
The
appellant
stated
that
during
the
years
under
appeal
he
owned
four
different
parcels
of
land
in
British
Columbia
and
that
mortgage
payments,
where
applicable,
were
made
from
one
of
a
number
of
joint
bank
accounts
he
held
with
Sharon
Ferguson
at
the
Canadian
Imperial
Bank
of
Commerce
and
at
the
Credit
Union
in
Nelson.
For
purposes
of
going
to
Spokane,
Washington
for
shopping,
they
maintained
a
joint
bank
account
there.
He
paid
his
British
Columbia
medicare
premiums
out
of
a
British
Columbia
bank
account,
maintained
his
membership
in
the
Plumbers’
Union
—
AFL-CIO
—
which
included
practitioners
of
his
welding
specialty.
On
December
14,
1983,
the
appellant
agreed
that
he
and
Sharon
Ferguson
jointly
purchased
a
Subaru
vehicle
in
Nelson
and
in
1985
purchased
a
GMC
pickup
truck.
A
photocopy
of
the
appellant’s
passport,
valid
from
July
20,
1982
to
July
20,
1987,
(Exhibit
R-10)
was
shown
to
him
indicating
that
he
returned
to
Canada
seven
times
per
year,
on
average,
between
1982
and
1986.
In
travelling
to
Nelson
from
Aberdeen
he
would
often
fly
to
Seattle,
then
to
Spokane,
where
Pe
would
rent
a
car
and
drive
to
Nelson.
However,
there
were
also
numerous
occasions
which
would
find
him
flying
from
Europe
to
different
cities
in
North
America
and
then
continuing
to
Nelson.
A
letter
from
his
employer
(Exhibit
R-11
)
containing
a
statement
of
his
earnings
for
the
financial
year
January
1983-January
1984,
was
directed
to
a
post
office
box
at
Nelson,
British
Columbia
and
his
pay
stubs
bore
the
same
address
in
June,
1985,
which
he
stated
were
forwarded
to
him
at
his
address
in
Aberdeen.
His
“payslips”,
which
is
the
name
of
an
Inland
Revenue
remittance
form,
indicated
nis
address
at
Nelson,
British
Columbia,
Canada
(Exhibit
R-14)
.
The
appellant
was
shown
his
Arrival
in
the
United
Kingdom
Inland
Revenue
Income
Tax
form,
(Exhibit
R-16)
dated
February
24,
1986,
in
which
he
responded,
"No",
to
the
question
regarding
whether
he
had
any
accommodation
for
his
use
in
the
United
Kingdom
since
he
arrived
and
also
wrote,
"No"
in
answer
to
the
question:
do
you
intend
to
stay
permanently
in
the
United
Kingdom?
It
was
clear
at
the
top
of
the
form
that
the
information
was
required
"to
decide
your
(the
appellant's)
residence
status
for
United
Kingdom
tax
purposes".
However,
the
appellant
pointed
out
that
he
answered
the
question:
how
long
do
you
intend
to
stay?,
by
writing,
“indefinitely”.
He
indicated
that
he
would
transfer
funds
from
his
bank
in
Aberdeen
to
a
bank
in
Nelson,
British
Columbia
as
needed.
In
1985,
he
installed
a
wood
stove
in
his
cabin
at
Trout
Lake
and
obtained
a
rebate
on
part
of
the
installation
costs
under
a
federal
government
program
regarding
conversion
to
alternate
forms
of
energy.
The
appellant
was
shown
a
T4
1984,
which
he
identified,
as
pertaining
to
his
employment
in
Canada
with
earnings
in
the
sum
of
$3,436.36.
He
had
been
issued
certain
charge
cards
such
as
Visa
and
MasterCard
before
leaving
Canada
and
he
maintained
them
but
did
obtain
additional
charge
cards
from
the
Royal
Scotland
Bank
and
Chase
Manhattan
in
the
United
States.
He
stated
that
he
transferred
his
interest
in
the
Nelson
property
into
the
sole
name
of
Sharon
Ferguson
as
he
was
concerned
that
Revenue
Canada
was
going
to
treat
him
as
a
resident
of
Canada
for
income
taxation.
He
agreed
that
in
1981
he
had
stored
some
belongings
at
his
parents'
home
in
Kaslo,
British
Columbia,
prior
to
them
moving
to
Creston.
In
re-examination,
the
appellant
stated
that
he
also
belonged
to
the
Seamans'
Union
in
Scotland
and
the
Allied
Offshore
Workers
in
the
United
Kingdom
but
maintained
his
membership
in
the
union
local
in
Burnaby,
British
Columbia,
which
he
could
use
to
obtain
a
travel
card
for
purposes
of
working
on
jobs
in
the
United
States.
Joy
Harrison
testified
she
has
been
employed
at
Revenue
Canada
since
1970
and
in
1989
worked
in
the
Identification
and
Compliance
Section.
She
began
inquiries
concerning
the
appellant
and
travelled
to
2918,
6
Mile
Road,
at
Nelson
to
interview
the
appellant
but,
finding
no
one
there,
she
left
a
note
for
the
appellant
together
with
tax
returns
and
her
business
card.
She
also
visited
Mr.
McCabe,
a
chartered
accountant,
and
obtained
from
him
three
boxes
of
records
belonging
to
the
appellant,
some
of
which
were
filed
as
respondent's
exhibits
in
these
appeals.
She
examined
other
documents
and
records
and
made
notes
of
their
contents.
She
discovered
information
pertaining
to
registration
and
insurance
on
vehicles
in
British
Columbia,
in
which
the
appellant
held
a
joint
interest,
and
a
membership
in
the
British
Columbia
Automobile
Association.
She
also
found
information
relating
to
the
appellant’s
membership
in
the
British
Columbia
Medical
Services
Plan
and
a
cheque
issued
on
a
Nelson
bank
account
for
payment
of
premiums.
She
also
found
documents
relating
to
transfer
of
funds
from
the
Isle
of
Man
Bank
to
the
CIBC
in
Nelson,
a
total
of
six
transfers
in
1983,
totalling
nearly
$16,000
in
U.S.
funds.
In
1984,
she
examined
records
indicating
the
appellant
had
transferred
over
$14,300
in
U.S.
funds
to
his
Nelson
bank
account.
She
made
notes
of
transactions
on
the
joint
chequing
account
the
appellant
had
with
Ms.
Ferguson
at
the
CIBC
in
Nelson.
Cheques
had
been
written
in
1985
to
purchase
a
small
tractor
and
to
pay
insurance
and
certain
loan
payments
to
the
Credit
Union
in
Nelson
and
to
West
Coast
Securities
in
Vancouver.
She
found
other
cheques
payable
to
the
Bank
of
Montreal.
While
the
majority
of
cheques
were
written
by
Sharon
Ferguson,
the
activity
in
the
account,
including
deposits
and
withdrawals,
was
between
$5,000
and
$20,000
per
month.
She
also
found
various
credit
cards
slips
for
travel
in
the
Nelson
area
and
in
Idaho,
Washington
and
Montana.
For
the
1983
year,
she
found
airline
ticket
information
indicating
the
appellant
had
taken
17
flights,
none
of
which
departed
from
Canada
but
showing
five
flights
leaving
from
Seattle
and
two
from
Spokane.
In
cross-examination,
Ms.
Harrison
agreed
that
she
had
decided
the
appellant
was
a
resident
in
Canada
prior
to
attending
at
the
office
of
the
appellant's
accountant
and
that
she
prepared
tax
returns
for
the
appellant
covering
the
years
under
appeal
on
that
basis.
Counsel
for
the
appellant
submitted
that
many
of
the
indicia
tending
to
point
to
residence
in
Canada
were
merely
cosmetic
in
nature
and
not
of
great
significance.
In
counsel’s
submission,
it
was
apparent
the
appellant
would
have
to
remain
out
of
Canada
for
an
extended
period
of
time
in
order
to
find
employment
in
his
rather
narrow
specialty
and
that
there
was
a
substantial
connection
with
Aberdeen,
Scotland
throughout
the
years
under
appeal.
Counsel
for
the
respondent
submitted
that
the
issue
is
not
whether
the
appellant
had
to
leave
Canada
in
order
to
find
work
and
it
is
not
alleged
that
he
was
sojourning
in
Canada.
Rather,
on
all
of
the
evidence,
he
was
a
resident
of
Canada
for
the
years
under
appeal,
having
regard
to
all
of
the
facts
adduced
in
evidence.
In
Lee
V.
M.N.R.,
[1990]
1
C.T.C.
2082,
90
D.T.C.
1014
(T.C.C.),
the
Honourable
Judge
Teskey,
Tax
Court
of
Canada,
considered
the
issue
of
residence
of
the
taxpayer
who
had
been
employed
full
time
by
a
non-resident
corporation
performing
work
outside
of
Canada.
In
the
course
of
his
judgment,
Judge
Teskey
referred
to
the
leading
authority
on
the
issue
of
residence
and
went
on
to
set
forth
a
number
of
factors
that
are
to
be
considered
when
deciding
the
question
of
residency,
which
is
one
of
fact.
At
pages
2084-86
(D.T.C.
1016-17),
Judge
Teskey
stated:
The
relevant
provisions
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
"Act")
are:
2(1)
An
income
tax
shall
be
paid
as
hereinafter
required
upon
the
taxable
income
for
each
taxation
year
of
every
person
resident
in
Canada
at
any
time
in
the
year.
3.
The
income
of
a
taxpayer
for
a
taxation
year
for
the
purposes
of
this
Part
is
his
income
for
the
year
determined
by
the
following
rules:
(a)
determine
the
aggregate
of
amounts
each
of
which
is
the
taxpayer’s
income
for
the
year
(other
than
a
taxable
capital
gain
from
the
disposition
of
a
property)
from
a
source
inside
or
outside
Canada,
including,
without
restricting
the
generality
of
the
foregoing,
his
income
for
the
year
from
each
office,
employment,
business
and
property.
250(1)
For
the
purposes
of
this
Act,
a
person
shall,
subject
to
subsection
(2)
,
be
deemed
to
have
been
resident
in
Canada
throughout
a
taxation
year
if
(a)
he
sojourned
in
Canada
in
the
year
for
a
period
of,
or
periods
the
aggregate
of
which
is,
183
days
or
more.
250(3)
In
this
Act,
a
reference
to
a
person
resident
in
Canada
includes
a
person
who
was
at
the
relevant
time
ordinarily
resident
in
Canada.
JUDICIAL
AUTHORITIES
The
leading
authority
on
the
question
of
residence
is
Thomson
v.
M.N.R.,
[1946]
S.C.R.
209,
[1946]
C.T.C.
51,
2
D.T.C.
812,
a
decision
of
the
Supreme
Court
of
Canada.
Estey
J.
said
on
page
70
of
C.T.C.
(D.T.C.
813):
.
.
.
one
is
“ordinarily
resident"
in
the
place
where
in
the
settled
routine
of
his
life
he
regularly,
normally
or
customarily
lives.
One
"sojourns"
at
a
place
where
he
unusually,
casually
or
intermittently
visits
or
stays.
In
the
former
the
element
of
permanence;
in
the
latter
that
of
the
temporary
predominates.
The
difference
cannot
be
stated
in
precise
and
definite
terms,
out
each
case
must
be
determined
after
all
of
the
relevant
factors
are
taken
into
consideration,
but
the
foregoing
indicates
in
a
general
way
the
essential
difference.
It
is
not
the
length
of
the
visit
or
stay
that
determines
the
question.
On
the
same
page
he
says:
.
.
.
a
person
may
have
more
than
one
residence.
Mr.
Justice
Rand
at
pages
63-64
(D.T.C.
815-16):
The
graduation
of
degrees
of
time,
object,
intention,
continuity
and
other
relevant
circumstances,
shows,
I
think,
that
in
common
parlance
“residing”
is
not
a
term
of
invariable
elements,
all
of
which
must
be
satisfied
in
each
instance.
It
is
quite
impossible
to
give
it
a
precise
and
inclusive
definition.
It
is
highly
flexible,
and
its
many
shades
of
meaning
vary
not
only
in
the
contexts
of
different
matters,
but
also
in
different
aspects
of
the
same
matter.
In
one
case
it
is
satisfied
by
certain
elements,
in
another
by
others,
some
common,
some
new.
For
the
purpose
of
income
tax
legislation,
it
must
be
assumed
that
every
person
has
at
all
times
a
residence.
It
is
not
necessary
to
this
that
he
should
have
a
home
or
a
particular
place
of
abode
or
even
a
shelter.
He
may
sleep
in
the
open.
It
is
important
only
to
ascertain
the
spatial
bounds
within
which
he
spends
his
life
or
to
which
his
ordered
or
customary
living
is
related.
Ordinary
residence
can
best
be
appreciated
by
considering
its
antithesis,
occasional
or
casual
or
deviatory
residence.
The
latter
would
seem
clearly
to
be
not
only
temporary
in
time
and
exceptional
in
circumstances,
but
also
accompanied
by
a
sense
of
transitoriness
and
of
return.
But
in
the
different
situations
of
so-called
“permanent
residence”,
"temporary
residence”,
“ordinary
residence,
“principal
residence”
and
the
like,
the
adjectives
do
not
affect
the
fact
that
there
is
in
all
cases
residence;
and
that
quality
is
chiefly
a
matter
of
the
degree
to
which
a
person
in
mind
and
fact
settles
into
or
maintains
or
certralizes
his
ordinary
mode
of
living
with
its
accessories
in
social
relations,
interests
and
conveniences
at
or
in
the
place
in
question.
It
may
be
limited
in
time
from
the
outset,
or
it
may
be
indefinite,
or
so
far
as
it
is
thought
of,
unlimited.
On
the
lower
level,
the
expressions
involving
residence
should
be
distinguished,
as
I
think
they
are
in
ordinary
speech,
from
the
field
of
"stay",
or
"visit".
Reed
v.
M.N.R.,
[1989]
1
C.T.C.
2070,
89
D.T.C.
34
(T.C.C.),
a
decision
of
my
brother
Judge
Bonner
establishes
the
principle
that
residence
must
be
on
shore
and
cannot
be
on
the
high
seas.
The
question
of
residency
is
one
of
fact
and
depends
on
the
specific
facts
of
each
case.
The
following
is
a
list
of
some
of
the
indicia
relevant
in
determining
whether
an
individual
is
resident
in
Canada
for
Canadian
income
tax
purposes.
It
should
be
noted
that
no
one
or
any
group
of
two
or
three
items
will
in
themselves
establish
that
the
individual
is
resident
in
Canada.
However,
a
number
of
factors
considered
together
could
establish
that
the
individual
is
a
resident
of
Canada
for
Canadian
income
tax
purposes:
—
past
and
present
habits
of
life;
—
regularity
and
length
of
visits
in
the
jurisdiction
asserting
residence;
—
ties
within
the
jurisdiction;
—
ties
elsewhere;
—
permanence
or
otherwise
of
purposes
of
stay;
—
ownership
of
a
dwelling
in
Canada
or
rental
of
a
dwelling
on
a
long-term
basis
(for
example,
a
lease
for
one
or
more
years)
;
—
residence
of
spouse,
children
and
other
dependent
family
members
in
a
dwelling
maintained
by
the
individual
in
Canada;
—
memberships
with
Canadian
churches
or
synagogues,
recreational
and
social
clubs,
unions
and
professional
organizations;
—
registration
and
maintenance
of
automobiles,
boats
and
airplanes
in
Canada;
—
holding
credit
cards
issued
by
Canadian
financial
institutions
and
other
commercial
entities
including
stores,
car
rental
agencies,
etc.;
—
local
newspaper
subscriptions
sent
to
a
Canadian
address;
—
rental
of
Canadian
safe
deposit
box
or
post
office
box;
—
subscriptions
for
life
or
general
insurance
including
health
insurance
through
a
Canadian
insurance
company;
—
mailing
address
in
Canada;
—
telephone
listing
in
Canada;
—
stationery
including
business
cards
showing
a
Canadian
address;
—
magazine
and
other
periodical
subscriptions
sent
to
a
Canadian
address;
—
Canadian
bank
accounts
other
than
a
non-resident
bank
account;
—
active
securities
accounts
with
Canadian
brokers;
—
Canadian
driver's
licence;
—
membership
in
a
Canadian
pension
plan;
—
holding
directorship
of
Canadian
corporations;
—
membership
in
Canadian
partnerships;
—
frequent
visits
to
Canada
for
social
or
business
purposes;
—
burial
plot
in
Canada;
—
will
prepared
in
Canada;
—
legal
documentation
indicating
Canadian
residence;
—
filing
a
Canadian
income
tax
return
as
a
Canadian
resident;
—
ownership
of
a
Canadian
vacation
property;
—
active
involvement
in
business
activities
in
Canada;
—
employment
in
Canada;
—
maintenance
or
storage
in
Canada
of
personal
belongings
including
clothing,
furniture,
family
pets,
etc.;
—
obtaining
landed
immigrant
status
or
appropriate
work
permits
in
Canada;
—
severing
substantially
all
ties
with
former
country
of
residence.
The
appellant
claims
that
he
did
not
want
to
be
a
resident
of
Canada
during
the
years
in
question.
Intention,
or
free
choice
is
an
essential
element
in
domicile,
but
is
entirely
absent
in
residence.
In
the
present
appeal,
the
statutory
provisions
of
the
Income
Tax
Act
remain
unchanged
from
those
applicable
in
the
Lee
decision,
supra.
The
appellant,
because
of
his
specialty
as
a
deep
sea
diver
and
hyperbaric
welder
specializing
in
underwater
pipeline
construction,
possessed
a
special
skill
that
required
him
to
seek
employment
outside
of
Canada.
Throughout
the
period
of
his
employment
offshore,
he
returned
regularly
(on
average
seven
times
a
year)
to
Nelson,
British
Columbia,
and
spent
between
75-100
days
per
year
in
Canada,
mostly
in
the
Nelson
area.
He
owned
various
properties
in
British
Columbia
during
the
years
under
appeal
and
purchased
a
residence
in
joint
title
with
Ms.
Ferguson
and
the
mortgage
payments
were
made
from
a
joint
bank
account
in
Nelson,
which
received
regular
infusions
of
funds
from
his
employment
income
by
means
of
transfers
from
Scotland
or
other
bank
accounts
in
Europe.
After
transferring
the
property
into
the
sole
name
of
Sharon
Ferguson
in
December,
1986,
admittedly
for
the
purpose
of
forestalling
a
determination
by
Revenue
Canada
that
he
was
a
resident
of
Canada,
he
continued
to
be
the
guarantor
on
the
mortgage.
He
owned
two
vehicles
jointly
with
Ms.
Ferguson
and
the
insurance
and
registration
reflected
that
ownership.
He
maintained
a
British
Columbia
driver's
license
together
with
medical
coverage
under
the
British
Columbia
Medical
Services
Plan,
although
he
also
had
medical
coverage
at
the
same
time
through
the
National
Health
Service
in
the
United
Kingdom.
He
maintained
credit
cards
issued
by
Canadian
financial
institutions.
He
obtained
his
mail
at
an
address
in
Nelson,
British
Columbia,
and
this
address
was
maintained
for
purposes
of
correspondence
with
his
employer
and
on
the
remittance
forms
sent
to
Inland
Revenue
in
the
United
Kingdom.
He
maintained
a
brokerage
account
with
West
Coast
Securities
and,
although
he
stated
during
his
testimony
that
the
account
was
probably
dormant
throughout
the
years
under
appeal,
in
1985,
a
cheque
to
that
firm,
in
the
sum
of
$850
was
written
on
the
CIBC
account
in
Nelson.
He
also
had
other
bank
accounts
in
Nelson
and
loans
to
the
Bank
of
Montreal.
During
1984,
he
was
able
to
find
work
in
the
Canadian
Arctic
for
a
brief
period.
When
injured
during
the
course
of
his
employment,
he
returned
to
Nelson
and
sought
medical
treatment
and
recuperated
in
the
presence
of
his
parents,
relatives
and
Ms.
Ferguson.
The
appellant
took
the
position
with
the
United
Kingdom
taxation
authorities
that
he
was
not
a
resident
there.
While
that
posturing
does
not
operate
by
way
of
estoppel
so
as
to
preclude
the
appellant
from
establishing
an
alternate
version
of
events
relevant
to
this
appeal,
it
cannot
be
ignored.
It
is
indicative
of
the
appellant's
ties
to
Canada
in
that
he
did
not
wish
to
be
regarded
by
the
United
Kingdom
as
a
resident
there.
When
finally
called
upon
to
pay
tax
to
Inland
Revenue,
he
did
so
on
the
basis
of
being
a
non-resident.
The
appellant
maintained
a
relationship
with
Sharon
Ferguson,
which
despite
some
ebbs
and
flows,
had
sufficient
constancy
to
culminate
in
their
present
common-law
union,
from
which
a
child
was
born.
Not
much
is
to
be
made
of
any
particular
factor
in
isolation
and
the
appellant’s
explanations
for
maintaining
a
British
Columbia
driver's
license
and
membership
in
the
union
local
in
Burnaby
are
valid.
I
suppose
an
energy
conversion
grant
may
have
been
available
to
a
non-resident
who
owned
property
in
Canada
and
a
non-resident
would
have
had
to
take
out
the
same
prospector's
license
as
would
a
resident.
However,
looking
at
all
of
the
evidence,
it
is
clear
that
the
appellant
did
not
wish
to
sever
substantially
all
ties
with
Canada.
In
many
respects,
he
tried
to
have
it
both
ways
—
to
be
a
Canadian
resident
for
purposes
of
negotiations
with
Inland
Revenue
and
a
non-resident
when
dealing
with
Revenue
Canada.
Although
he
maintained
a
suite
in
Aberdeen
throughout
the
years
under
appeal,
including
the
period
of
nearly
a
year
spent
in
Spain,
it
was
for
the
purposes
of
his
employment
and
to
facilitate
ready
access
to
the
diving
equipment
and
personal
belongings
required
for
an
extended
stay
in
a
foreign
country.
The
time
spent
in
Canada
was
not
in
the
nature
of
a
visit
by
an
expatriate.
The
appellant
was
coming
home
to
see
his
girlfriend,
his
parents,
brothers
and
sister,
and
to
undertake
improvements
to
his
real
property
or
to
buy
and
sell
other
property
and
otherwise
to
participate
in
many
routine
aspects
of
life
done
each
day
by
one
who
is
ordinarily
resident
in
a
country.
He
ensured
that
sufficient
funds
were
routinely
sent
to
the
Nelson
bank
account
so
that
his
friend,
Ms.
Ferguson
could
pay
the
mortgage
on
the
house,
jointly
owned
with
him
until
December
16,
1986.
As
well,
he
sent
money
for
the
purpose
of
paying
insurance
premiums
on
vehicles
jointly
owned
by
them
and
for
a
variety
of
other
purposes,
including
payment
on
loans
relating
to
the
purchases
of
real
property
or
equipment
to
be
used
in
connection
with
said
ownership.
The
cabin
on
the
recreational
property
at
Trout
Lake
was
improved
during
the
years
under
appeal
and
represented
a
continuing
desire
to
hold
property
in
that
location,
near
the
community
of
Nelson.
Having
regard
to
all
of
the
evidence,
the
appellant
has
not
demonstrated
that
the
respondent
was
in
error
in
assessing
the
appellant
on
the
basis
that
he
was
a
person
ordinarily
resident
in
Canada.
Clearly,
based
on
an
analysis
of
all
of
the
factors
evolving
from
the
evidence,
he
was
ordinarily
resident
throughout
the
period
under
appeal.
At
the
outset
of
the
appeal,
counsel
for
the
appellant
and
the
respondent
advised
that,
regardless
of
whether
the
appellant
was
successful
on
the
issue
of
residence,
both
of
the
appeals
would
be
allowed
as
follows,
and
to
give
effect
to
this
agreement,
the
assessments
are
referred
back
to
the
Minister
for
reconsideration
and
reassessment
on
this
basis:
1(a)
by
reducing
the
taxable
income
on
which
the
assessment
of
taxes
is
based
as
follows:
(i)
for
1982
by
$4,262
to
$8,224.50;
(ii)
for
1983
by
$9,036.20
to
$7,299.79;
(iii)
for
1984
by
$16,187.01
to
$49,927.57;
(iv)
for
1985
by
$29,524.16
to
$69,581.43;
(v)
for
1986
by
$58,275.82
to
$22,779.61;
(b)
by
providing
credit
for
United
Kingdom
taxes
paid
asfollows:
(i)
for
1982
—
$2,171.70;
(ii)
for
1983
—
$1,874.12;
(iii)
for
1984
—$2,395.47;
(iv)
for
1985
—
$10,734.95;
and
(v)
for
1986
—
$6,837.41
(c)
by
providing
credit
for
Norwegian
taxes
paid
for
1983
in
the
sum
of
$653.05.3
There
are
no
costs
awarded
to
the
appellant.
Appeal
dismissed.